On January 27, 2010, the U.S. Court of Appeals, Second Circuit, held that another type of speech is not protected under the First Amendment. Public employees’ speech made “pursuant to . . . official duties” is not a protected speech.[1] The case, Weintraub v. Board of Education, involved a teacher who was denied the opportunity to pursue a retaliation claim against a school.[2] The U.S. Court of Appeals found that filing a grievance was pursuant to one of his official duties as a public school teacher, maintaining discipline, and thus was not protected speech.[3] This holding rests solely on the court’sbroad interpretation of a recent case, Garcetti v. Ceballos, [4] and a narrow interpretation of public employees’ First Amendment protections.[5] In this author’s opinion, the dissent was correct–a more appropriate reading would be a less expansive one. The definition of speech made “pursuant to . . . official duties” should be read more narrowly, as this would preserve the “delicate balancing” required by the First Amendment freedom of speech for public employees.[6]

Background

Petitioner-Appellant David H. Weintraub, a former elementary public school teacher, sued the Board of Education of the City of New York for wrongful termination.[7] He claimed that Respondent-Appellees violated his First Amendment rights by retaliating against him, and ultimately fired him, after he filed a formal grievance with his union representative.[8] Weintraub filed the grievance to challenge the school administration’s refusal to discipline a student who threw a book at him during class on multiple occasions.[9] He felt it was the matter was of public concern; that it was “not an environment a teacher would want to go to where a child is allowed to throw a book at teachers.”[10] Weintraub alleged that the school officials retaliated through acts of intimidation and harassment against him because of his complaint.[11] He also alleged that after his complaint, he received “unfounded negative performance reviews and evaluations,” wrongful criminal accusations, “and was ultimately terminated.”[12]

The Eastern District Court, in an April 28, 2006 opinion, originally held that Weintraub’s First Amendment claim was valid because the content of the speech related to a public concern regardless of his status as a teacher and thus his complaint was protected by his First Amendment rights.[13] Over a year later, on May 29, 2007, the district court reconsidered the plaintiff’s First Amendment claim in light of the subsequent Garcetti decision which raised new issues and redefined protected and non-protected speech in schools.[14]